Case C-439/08: Reference for a preliminary ruling from the Hof van Beroep te Brussel (Belgium) lodged on 6 October 2008 — VZW Vlaamse Federatie van Verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers VEBIC , the other parties being: Raad voor de Mededinging and the Minister van Economie
Date: 2008-10-06
Institutions: Court of Justice
Subjects: EU Member State, Netherlands, competition, economy, interpretation of the law

6.12.2008

EN

Official Journal of the European Union

C 313/19

The requirement of minimum share capital of EUR 100 000
must be regarded as a restriction of freedom of establishment,
for it prevents a Community operator having less share capital
than the minimum amount demanded by the Portuguese legisla-
tion from setting up subsidiaries or branches in Portugal.

Limiting an undertaking's company objects to the carrying on
of the activity of vehicle inspection constitutes a restriction of
freedom of establishment,
for Community operators legally
providing other services at the same time (inspecting, repairing
and servicing vehicles) in the Member State of establishment
the undertaking's objects and,
would be obliged to alter
perhaps, even its own internal structure in order to be able to
extend to Portugal its vehicle-inspecting activity; in addition, this
condition cannot be considered necessary in order to guarantee
the independence and impartiality of
that
service.

the providers of

The incompatibility rules imposed on the members, managers
and directors of the undertaking who deal with the manufac-
ture, repair, rental, import or marketing of vehicles, their parts
or accessories or who are involved in transport activity are
capable of having restrictive effects comparable to those
produced by limiting the company objects and of creating
significant restrictions of the freedom of establishment of under-
takings from other Member States wishing to carry on the
vehicle-inspection activities in Portugal, because the providers of
vehicle-inspection services already legally established in another
Member State, with members, managers or directors carrying on
other activities in the Member State of establishment, would
have to alter their internal structure, part company with those
members or cause them to give up the incompatible activities.

Reference for a preliminary ruling from the Hof van
Beroep te Brussel (Belgium) lodged on 6 October 2008 —
VZW Vlaamse Federatie van Verenigingen van Brood- en
Banketbakkers,
Chocoladebewerkers
‘VEBIC’, the other parties being: Raad voor de Mededinging
and the Minister van Economie

Ijsbereiders

en

(Case C-439/08)

(2008/C 313/28)

Language of the case: Dutch

Parties to the main proceedings

Applicant: VZW Vlaamse Federatie van Verenigingen van Brood-
en Banketbakkers, Ijsbereiders en Chocoladebewerkers ‘VEBIC’

Other parties: Raad voor de Mededinging and Minister van Econ-
omie

Questions referred

1. Must [Regulation (EC) No 1/2003 on the implementation of
the rules on competition laid down in Articles 81 and 82 of
the Treaty, in particular Articles 2, 15(3) and 35(1)] (1) above
be interpreted to mean that national competition authorities
to formulate
derive directly from them an entitlement
written observations on arguments raised, in the context of
appeal proceedings, against a decision made by them, and
that they can themselves present arguments in fact and in
law, with the result that this entitlement cannot be excluded
by a Member State?

2. Must the same provisions be interpreted to mean that, for
the effective application of the competition rules with a view
to protecting the public interest,
the public enforcement
bodies which are designated as the competition authorities
are not only entitled but also have a duty to participate in
the appeal proceedings against their decisions by stating their
position in relation to the arguments raised in fact and in
law?

3. If questions (1) and (2) are answered in the affirmative, must
in the
these provisions then be interpreted to mean that,
absence of national provisions concerning the participation
by the competition authority in the proceedings before the
appeal body, and where various authorities are involved, it is
the authority which is competent to take the decisions set
out in Article 5 of the Regulation which shall participate in
the appeal proceedings against its decision?

4. Are the answers to the above questions different

the
competition authority acts, in accordance with national law,
as a court of law and/or if the final decision is taken on
completion of an investigation by a body belonging to that
court and charged with drawing up the objections and a
draft decision?

if

Referring court

Hof van Beroep te Brussel (Belgium)

(1) OJ 2003 L 1, p. 1.